HACHAM VS. SEBAI (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**Custody.** The court reviewed the physical custody award for a clear abuse of discretion, citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (1999), and Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015), focusing on whether the district court "reached its conclusions for the appropriate [legal] reasons" and whether its findings were "supported by substantial evidence." The court noted that deference is not owed to findings "so conclusory they mask legal error" (Davis) and that the sole consideration in custody is the child's best interest under NRS 125C.0035(1), with specific findings required on the NRS 125C.0035(4)(a)-(l) factors, which are non-exhaustive (Ellis). It also cited NRS 125C.0025(1)(b)'s joint-physical-custody presumption and Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 286 (Ct. App. 2023), for the proposition that a court may order primary physical custody if joint custody is not in the children's best interest. Tarik's equal protection challenge to the district court's consideration of the Moroccan decree (which he tied to NRS 125C.0035(2)'s prohibition on preference based on a parent's sex) was deemed waived under Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981), because raised for the first time on appeal, and insufficiently developed under Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). On the merits, the court found the custody award supported by substantial evidence: the district court connected each best interest factor to record evidence, found factors (c), (g), and (h) favored Dounia and none favored Tarik, and under the "other things" provision considered the parties' acquiescence to Dounia's historical caretaking role, the Moroccan decree, Tarik's "limited requests for contact," and his "inconsistent testimony" regarding his custodial request. **Due process and the negative inference.** Reviewing constitutional questions de novo (Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007)), the court cited the Fourteenth Amendment of the United States Constitution and Article 1, Section 8(5) of the Nevada Constitution (Gordon v. Geiger, 183 Nev. 542, 545, 402 P.3d 671, 674 (2017)) and the requirement of "notice and an opportunity to be heard" (Sw. Gas Corp. v. Pub. Utils. Comm'n of Nev., 138 Nev. 37, 46, 504 P.3d 503, 511 (2022), quoting Callie, quoting Maiola v. State, 120 Nev. 671, 675, 99 P.3d 227, 229 (2004)). Decisions affecting real property interests implicate due process (Malfitano v. Cnty. of Storey By & Through Storey Cnty. Bd. of Cnty. Comm'rs, 133 Nev. 276, 282, 396 P.3d 815, 819-20 (2017)), and notice "must be provided at the appropriate stage" (Sw. Gas, quoting Eureka Cnty. v. Seventh Jud. Dist. Ct., 184 Nev. 275, 280, 417 P.3d 1121, 1125 (2018)). The court held no due process violation occurred: the discovery commissioner's report expressly warned that a negative inference would automatically issue as to any information withheld after October 12, 2022, and Tarik had the opportunity to comply and evade the inference altogether. **Characterization of the Moroccan property.** The court reviewed property distribution for abuse of discretion (Wolff v. Wolff, 112 Nev. 1355, 1359, 929 P.2d 916, 918-19 (1996)) and upholds property characterizations supported by substantial evidence (Waldman v. Maini, 124 Nev. 1121, 1128, 195 P.3d 850, 855 (2008); Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004)). While property owned before marriage remains separate under NRS 123.130, and property acquired during marriage is presumed community (Burdick v. Pope, 90 Nev. 28, 29, 518 P.2d 146, 146 (1974)), conclusory statements or "surmise or conjecture" cannot support a separate-property characterization absent substantiating evidence (Burdick). The court also cited Todkill v. Todkill, 88 Nev. 231, 235-36, 495 P.2d 629, 631 (1972) (clear and certain proof), Peters v. Peters, 92 Nev. 687, 690, 557 P.2d 713, 715 (1976), Sprenger v. Sprenger, 110 Nev. 855, 858, 878 P.2d 284, 286-87 (1994), and Pryor v. Pryor, 103 Nev. 148, 150, 734 P.2d 718, 719 (1987). Because Tarik offered only the statement that he "bought a condo in 2008 prior to the marriage," with no documentation on purchase, value, mortgage, or funding sources, the court concluded that even without the negative inference the community characterization was within the district court's discretion, and that applying the negative inference was also proper under NRCP 16.2(g) and (h). **Liquidated 401(k) funds.** Retirement benefits earned during marriage are community property (Walsh v. Walsh, 103 Nev. 287, 288, 738 P.2d 117, 117 (1987)), even if unvested at divorce (Gemma v. Gemma, 105 Nev. 458, 461, 778 P.2d 429, 4380 (1989)). Applying the Waldman standard, the court concluded substantial evidence supported the finding that only about $57,000 of the $160,000 Tarik withdrew traced to community obligations ($40,000 in Moroccan court fees per Exhibit M; roughly $17,000 in credit card payments per Exhibits F, G, K, and S), leaving approximately $102,000 unaccounted for. Given the district court's credibility findings (citing Matter of Parental Rights as to C.J.M., 118 Nev. 724, 732, 58 P.3d 188, 194 (2002)) and the properly applied negative inference, the award to Dounia of half the unaccounted funds was not an abuse of discretion. The court separately held that Tarik waived any argument about tax consequences of the withdrawal by failing to raise it at trial (Old Aztec Mine).

In plain language

Tarik Hacham and Dounia Sebai married in 2011 and had two children. In 2020, during a period of marital strain, the family took an extended trip that ended in Morocco. There, after a heated argument, Tarik took Dounia's and the children's passports and refused to return them. Tarik filed for divorce in a Moroccan court, which denied his requests to bar the children from leaving Morocco and ordered him to return the passports or face a daily fine. He did neither. Dounia, meanwhile, filed for divorce in Nevada and obtained an emergency order allowing her to get temporary replacement passports; she returned to Las Vegas with the children. The Moroccan court later issued a divorce decree awarding Dounia primary custody. Back in the United States, Tarik at first lived in Arizona and, according to the opinion, exercised less than his agreed parenting time or none at all before moving to Las Vegas in September 2022. During the Nevada divorce case, a discovery commissioner found that most of Tarik's responses to Dounia's requests for financial information were inadequate and that he had not acted in good faith. The commissioner ordered him to fully comply by a deadline or face a "negative inference" penalty - meaning that any information he withheld would be treated as supporting Dounia's side of the case. The district court adopted that order without objection from either party. After a trial, the district court awarded the parties joint legal custody but gave Dounia primary physical custody, finding that the statutory "best interest of the child" factors were either neutral or favored her. The court also ordered the Moroccan apartment sold with the proceeds split equally, and ordered Tarik to pay Dounia an equalization payment of roughly $51,000 because about $102,000 of the $160,000 he had withdrawn from his 401(k) retirement account - money both sides agreed belonged to the marital community - could not be traced to legitimate community expenses. Throughout the case, the court repeatedly questioned Tarik's credibility, noting contradictory statements and testimony belied by documents in evidence. On appeal, the Court of Appeals rejected all three of Tarik's challenges. First, it refused to consider his argument that the Moroccan decree - which he claimed favored Dounia solely because she is the children's mother - violated his equal protection rights, because he never raised that argument in the district court and did not cogently argue it on appeal. In any event, the court concluded the custody decision rested on a comprehensive best-interest analysis in which the Moroccan decree was only one factor. Second, the court held the negative inference did not violate Tarik's due process rights, because he had specific notice at the discovery hearing that withheld information would be construed against him and had time to comply before the penalty took effect; and it held the district court properly treated the Moroccan apartment as community property, since Tarik's only support for his separate-property claim was a bare statement that he "bought a condo in 2008 prior to the marriage," with no documentation. Third, the court upheld the 401(k) ruling, because Tarik's evidence traced only about $57,000 of the $160,000 to community obligations, leaving roughly $102,000 unaccounted for. The court also held that Tarik waived his argument about the tax consequences of the 401(k) withdrawal by not raising it at trial.